New Zealand Law Society - The Diary of Anne Frank — Claims of joint authorship and their impact on the duration of copyright

The Diary of Anne Frank — Claims of joint authorship and their impact on the duration of copyright

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In mid-November, a number of Northern Hemisphere news agencies reported on a rather ugly spat that has been brewing over copyright in the book Anne Frank: The Diary of a Young Girl (colloquially known as The Diary of Anne Frank).

Many in Europe expected that copyright in the book would expire at the end of this month, being 70 years after the end of the year in which Anne died at the Bergen Belsen Concentration Camp.

However, Anne Frank Fonds (AFF), which owns the copyright in both Anne's original diaries and the book, has reportedly been contacting publishers in Europe saying that Anne was not, as previously believed, the sole author of her book and that her father Otto was a joint author.

If true, the ramifications are significant. Joint authorship can directly impact the term of copyright protection, in this case enabling AFF to continue to control the right to reproduce the book for another 20 years.

As in Europe, New Zealand copyright law recognises joint authorship of a copyright work, where two or more writers collaborate and their contributions are made as part of the same process or task.

Where you have joint authors, copyright will generally expire 50 years after the year in which the last author dies (in most European countries it's a 70-year term).

Authorship of Anne's diaries

From what we know, Otto would not be considered a joint author of Anne's diaries in New Zealand. Otto stated in the prologue of the first edition of the book that it mostly contained Anne's words and was written by Anne while in hiding. He didn't collaborate with Anne or provide any creative input into her writing at the time she wrote the diaries.

Facsimile of Anne Frank's Diary.
Photo by Heather Cowper CC-By

AFF seems to recognise this on its website where it states that: "Copyright to Anne Frank's original texts originally belonged to the author, Anne Frank".

Where the lines appear to be blurred is around the reproduction of parts of Anne's diaries in the book, and this is where the layers of different copyrights start to emerge. Unpicking this requires separate examination of Anne's diaries and the book.

Under New Zealand law, if Anne was the sole author of her diaries, then copyright in the diaries would have expired by the end of 1997.

Even if AFF could argue that Otto was a joint author of Anne's diaries this wouldn't improve its position, as copyright would have expired in 1995 due to a quirk in the drafting of our Copyright Act.

Authorship of the book as a compilation

If AFF is actually claiming that Otto is an owner of copyright in the book as a compilation, rather than a joint or co-author, then this may hold some water.

Not everything in the book was written by Anne, nor is it an exact replica of her diaries. In fact, the book comprises:

  • a prologue and epilogue written by Otto; and
  • a mixture of shortened editions of material Otto had carefully selected and arranged from Anne's diaries.

Both in New Zealand and Europe, copyright law recognises that copyright can subsist in a compilation of literary works. The author of a compilation is the person who gathers or organises the collection of material and who selects, orders and arranges it.

In New Zealand, it's likely that Otto would be considered the author of copyright in the book as a compilation. This would enable AFF to prevent others from copying the prologue, epilogue and the selection, order, and arrangement of the extracts from Anne's diaries. However, AFF would not be able to stop anyone from using and reproducing material from Anne's diaries in any other way.

The term of copyright for the book as a compilation would be determined by reference to the year of Otto's death (1980) meaning that copyright would expire here in 2030.

This will likely extend until 2050 as a result of the recently concluded negotiations for the Trans-Pacific Partnership Agreement. Under the TPPA, we will have to extend the duration of copyright for literary works from 50 to 70 years from the end of the calendar year in which the author dies. Assuming the TPPA is ratified, we can expect these changes to be implemented some time in the next couple of years.

This will no doubt be mixed news for copyright owners like AFF, since the book is likely to still be protected as a compilation whenever the legislative changes come in to force, but it will not have any impact on copyright that has already expired, like that in Anne's diaries.

Matthew Hayes is a senior associate of AJ Park. He specialises in intellectual property litigation.

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